Citation Nr: 0202885
Decision Date: 03/27/02 Archive Date: 04/04/02
DOCKET NO. 01-08 466 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for heart disease for
purposes of accrued benefits.
2. Entitlement to service connection for arthritis for
purposes of accrued benefits.
3. Entitlement to service connection for asthma for purposes
of accrued benefits.
4. Entitlement to service connection for numbness of the
legs and arms for purposes of accrued benefits.
5. Entitlement to service connection for pulmonary
tuberculosis (PTB) for purposes of accrued benefits.
6. Entitlement to service connection for the cause of the
veteran's death.
7. Whether the appellant has legal entitlement to non-
service connected death pension.
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Counsel
INTRODUCTION
The veteran had active duty from September 1946 to May 1949.
He died in December 2000. The appellant is the veteran's
surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines.
REMAND
The appellant's January 2001 claim for dependency and
indemnity compensation based on service connection for the
cause of the veteran's death includes a claim for accrued
benefits. See 38 U.S.C.A. § 5101(b)(1) (West 1991) (claim by
surviving spouse for dependency and indemnity compensation
shall also be considered claim for accrued benefits).
Accrued benefits are benefits to which a veteran was entitled
at his death, based on evidence on file at the date of death,
and due and unpaid for a period not to exceed two years prior
to the last date of entitlement, that may be paid to
survivors as provided by law. 38 U.S.C.A. § 5121 (West 1991
& Supp. 2001); 38 C.F.R. § 3.1000 (2001). In its June 2001
rating decision, the RO did not adjudicate that claim on the
merits, but stated only that accrued benefits were not
payable because the veteran had no pending claim at the time
of his death.
Review of the record reveals that the veteran initially
sought service connection for heart disease, arthritis,
asthma, numbness of the legs and arms, and pulmonary
tuberculosis in 1998. The RO denied his claims in October
1998 and March 1999 rating decisions, which the veteran
appealed to the Board. In December 2000, the Board issued a
decision in which it remanded the claim for pulmonary
tuberculosis and denied all other claims. The Board decision
was issued on the same date on which the veteran died.
Therefore, the Board subsequently vacated the December 2000
Board decision and dismissed the veteran's appeal.
Due to the changed circumstances effected by the vacated
decision and dismissed appeal, each of the veteran's service
connection claims was pending at the time of his death. The
RO is therefore required to consider the claims on the
merits. Thus, a remand is required.
The Board finds that the issue of service connection for the
cause of the veteran's death is inextricably intertwined with
the issues to be adjudicated for purposes of accrued
benefits. Specifically, the veteran sought service
connection for heart disease. The cause of death listed on
the death certificate is cardiopulmonary arrest. Thus, the
outcome of the claim for accrued benefits as to the heart
disease may significantly impact the claim for service
connection for the cause of the veteran's death.
Similarly, the RO's determination as to each of the accrued
benefits claims will impact the disposition of the claim for
non-service connected death pension. Basic entitlement
exists if the veteran had qualifying wartime service or the
veteran at the time of death was receiving or entitled to
compensation for a service-connected disability based on
service during a period of war. 38 U.S.C.A. § 1541 (West
1991); 38 C.F.R. § 3.3(b)(4) (2001).
Claims that are so related to each other should not be
subject to piecemeal decision-making or appellate litigation.
Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); see
generally Parker v. Brown, 7 Vet. App. 116 (1994); Babchak v.
Principi, 3 Vet. App. 466 (1992). Accordingly, the Board
defers any action on the issues of service connection for the
cause of the veteran's death and entitlement to non-service
connection death pension pending the RO's adjudication of the
accrued benefits claims.
Accordingly, the case is REMANDED for the following action:
The RO should adjudicate on the merits
the appellant's claims for service
connection for heart disease, arthritis,
asthma, numbness of the arms and legs,
and pulmonary tuberculosis for purposes
of accrued benefits. The RO should also
readjudicate the appellant's claim for
service connection for the cause of the
veteran's death and for non-service
connected death pension. If the
disposition of any claim remains
unfavorable to the appellant, the RO
should furnish the appellant a
supplemental statement of the case and
afford the application opportunity to
respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The Board intimates no
opinion as to the ultimate outcome of the appellant's claim.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No
action is required of the appellant unless notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
V. L. Jordan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).